By Cliff Montgomery – Sept. 17th, 2025
Back in March, Trump attempted to rewrite several election laws via executive order. Beginning in April, the federal courts began passing injunctions that pause a number of the order’s provisions. The courts put those pauses in place for one very solid reason: The president has no authority to change election laws. The states and the U.S. Congress may change those laws, but not the person occupying the White House.
The American Spark looks at a short, informative study released today by the Congressional Research Service (CRS). The six-page report lays out the current election laws that Trump is aching to change, the basics of his executive order, and precisely why the courts are questioning its legality.
We begin with quotes from the CRS study explaining – in plain English – was election laws Trump wants to rewrite. About two days from now, we’ll print the report’s summation of Trump’s fiat – oops, we mean Executive Order – then we’ll end the look into the CRS study by offering readers its statements on the pending legal challenges and issues for Congress to consider.
“On March 25, 2025, President Trump issued Executive Order (EO) 14248, ‘Preserving and Protecting the Integrity of American Election.’ The EO addresses the Election Assistance Commission (EAC) and the national uniform voter registration form, mail-in ballot requirements, state election database access by the federal government, federal election funding conditions, and voting systems requirements, among other issues.
“In April, the District Court for the District of Columbia in League of United Latin American Citizens (LULAC) v. Executive Office of the President granted, in part, a preliminary injunction pausing some of the provisions of the EO. In June, the District Court for the District of Massachusetts issued an injunction blocking additional provisions in litigation brought by multiple state plaintiffs in State of California v. Trump. Washington and Oregon separately challenged the EO in the U.S. District Court for the Western District of Washington in State of Washington v. Trump.
“This Legal Sidebar provides background on relevant constitutional authority and federal election laws, summarizes the provisions of EO 14248, discusses the litigation challenging the EO, and offers some considerations for Congress.
Constitutional Authority and Relevant Federal Election Law
“The Elections Clause of the U.S. Constitution provides to the states the initial and principal authority to administer elections within their jurisdictions. Specifically, the Elections Clause provides: ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.’
“As a result of this decentralized authority, state vary significantly in how they administer the federal voting process and elections. At the same time, the Elections Clause provides Congress with the authority to ‘override” most state laws regulating federal elections. Under that authority, Congress has enacted laws such as the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA), discussed below, which dictate how states administer certain aspects of the federal election process, including voter registration and voter roll maintenance.
“Under the Elections Clause, Congress enacted uniform dates applicable to the general elections for the U.S. Senate and House of Representatives. Specifically, 2 U.S.C. § 7 establishes that Election Day for the House is the first Tuesday following the first Monday in November in even-numbered years, and 2 U.S.C. § 1 establishes that Election Day for the Senate is on the same day as the next House election that precedes the expiration of a Senator’s term.
“A separate constitutional provision addressing presidential elections known as the Electors Clause—in Article II, Section 1, clause 2—provides that ‘Each State shall appoint’ electors for President and Vice President ‘in such Manner as the Legislature thereof may direct.’ Article II, Section 1, clause 4, provides Congress with the power to determine when the states choose their electors and ‘the Day on which they shall give their Votes; which Day shall be the same throughout the United States.’
“Accordingly, Congress established the same date, every four years, for the states to elect presidential and vice presidential electors in 3 U.S.C. § 1, known as Election Day.
Voter Registration Requirements
“For federal elections, the NVRA, also known as the ‘motor-voter law,’ requires states to provide for mail-in voter registration and to establish voter registration procedures for eligible citizens at motor vehicle departments and at certain other state agencies. As amended by HAVA, the NVRA requires the EAC to create a national uniform voter registration form—often called the Federal Form—for applicants to use to register by mail and at certain state and local offices.
“The NVRA specifies that the Federal Form can require identifying information from an applicant only to assess eligibility and must include a statement specifying eligibility requirements, including citizenship, an attestation that the applicant meets each requirement, and the applicant’s signature under the penalty of perjury. The law allows states to create their own mail-in voter registration forms for federal elections, so long as those forms comport with NVRA requirements and those states also continue to accept the Federal Form.
“The Supreme Court has held that the NVRA’s requirement that states use the Federal Form for registering voters in federal elections preempted a state law requiring documentary proof of citizenship for registering to vote. The Court also determined that, although the NVRA precludes a state from requiring an applicant using the Federal Form to provide additional proof of citizenship beyond what the form requires, a state has the power to ask the EAC to include the requirement in the form’s state-specific instructions.
Voter Roll Maintenance Requirements
“As amended by HAVA, the NVRA contains both requirements and restrictions relating to the removal of registrants from federal election voter rolls. The NVRA prohibits states from removing individual registrants except under certain circumstances, including ‘by reason of’ the registrant’s change in residence or death.
“At the same time, the NVRA requires states to ‘conduct a general program that makes a reasonable effort to remove’ the names of such voters.
“In a provision that the Supreme Court has called the ‘Failure-to-Vote Clause,’ the NVRA provides that such state programs cannot result in removing a voter’s name from the rolls for an individual’s ‘failure to vote,’ unless the person has either not notified the registrar or responded to a notice sent by the registrar and has not voted in two or more consecutive general federal elections.
“In interpreting this provision, the Supreme Court held that a state process using voter inactivity to initiate a process to remove registrants from its voter rolls did not violate the NVRA’s Failure-to-Vote Clause, because the registrant’s failure to vote was not the sole determinant for removal.
Voluntary Voting System Guidelines
“As authorized by HAVA, the EAC promulgates voluntary federal guidelines—the Voluntary VotingSystem Guidelines—to assist states in implementing requirements for their voting systems. While these guidelines are voluntary under federal law, many states require use of some or all of the EAC’s testing and certification program under state law, incentivizing voting system vendors to tailor their systems to the guidelines.
Federal Law “Alien” Voting Prohibition
“Federal criminal law, codified at 18 U.S.C. § 611, prohibits ‘any alien to vote’ in an election held only or partially for candidates for ‘the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner.’
“There are exceptions to this prohibition, including when an alien is authorized to vote by state or local law for non-federal candidates, or issues and if the ballot is formatted in a way that the alien has the opportunity to vote solely for non-federal candidates or issues. (For example, the District of Columbia enacted D.C. Law 24-242, the Local Resident Voting Rights Amendment Act of 2022, to allow eligible non-citizen residents to vote in D.C. local elections.)
“Additionally, 18 U.S.C. § 611 does not apply when: ‘(1) each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization); (2) the alien permanently resided in the United States prior to attaining the age of 16; and (3) the alien reasonably believed at the time of voting in violation of such subsection that he or she was a citizen of the United States.’
“Several other federal laws proscribe voting where the actor is not a U.S. citizen. For example, it is unlawful to make ‘any false claim that [the individual] is a citizen of the United States in order to register to vote or to vote in any Federal, State, or local election.’ ”
